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Southwark Council (202010934)

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REPORT

COMPLAINT 202010934

Southwark Council

25 November 2021


Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme. The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

  1. The complaint is about the landlord’s handling of:
    1. The resident’s reports regarding her upstairs neighbour installing a doorbell camera at their shared entrance.
    2. The resident’s associated complaint.

Background and summary of events

  1. The resident is a tenant in a flat owned by the landlord, and she has a shared entrance to the property with her neighbour, who is a leaseholder.
  2. On 3 November 2020, the resident emailed the landlord to make a stage one complaint to it about the doorbell camera installed by her neighbour. She explained that the landlord had breached its policy by allowing the neighbour to install a doorbell camera at their shared entrance without consulting her. The resident explained that, every time she left her home, the doorbell camera would record or capture her, as she could tell by the way this lit up when she walked through the entrance.
  3. The resident stated that this was an intrusion on her privacy, and that she had spoken to a security company that had informed her that the doorbell camera was more suitable for houses and, if this was used in a shared environment, then everyone would have to agree to this being used. The resident requested that the device was removed by 9 November 2020, as she had not agreed to this being installed, and she stated that she intended to pursue the matter legally if this was still up.
  4. The landlord contacted the residents neighbour on 9 November 2020 by email to let them know that a complaint had been made by the resident regarding the doorbell camera. The neighbour was advised by the landlord that it was seeking further advice regarding the use of the device, and it provided them with information regarding guidance for people using CCTV in domestic settings to ensure that they were compliant with data protection laws.
  5. On 20 November 2020, the resident’s neighbour responded to the landlord by email and explained that they had installed the doorbell camera to be able to retrieve parcels if they happened to be out. They stated that they could confirm that they were compliant with data protection laws, as the audio was turned off and the video footage auto deleted. The neighbour explained that they had access to a secure app, which was used solely for the functionalities of the doorbell, such as answering the door or speaking to a post person. They further stated that they had drawn an exclusion zone, which covered just their side of the shared entrance and not the resident’s side.
  6. The neighbour also explained to the landlord that they were happy for the resident to view the doorbell camera footage before this auto deleted, and that everything stated in their email was in line with the data protection regulations sent to them by the landlord.
  7. On 23 November 2020, the landlord responded to the resident’s stage one complaint via email. It explained that it had received her complaint on 5 November 2020, and it went on to state that the neighbour had been informed regarding her concerns raised about the use of the doorbell camera. The landlord explained that the neighbour had been informed about ensuring that they were compliant with data protection laws, and it described their above assurances to it about this. The resident was provided with a link to the website of the authority that governed the use of CCTV, and she was advised to contact that authority if she wanted to make a complaint about breaches of their guidelines.
  8. The resident emailed the landlord on 25 November 2020 in respect of its above stage one complaint response to her. The resident stated that she was not consulted about the doorbell camera device being placed in a shared area of the building, and that she wanted this removed. She explained that, if the landlord’s decision was the same, then she wanted her complaint to be escalated to the final stage two of its complaints procedure.
  9. The resident sent an email to this Service on 22 December 2020, and she explained that the landlord had failed to respond to the above final stage two complaint in the timescale in its guidelines. She stated that she had eventually received an acknowledgement to the complaint from it on 16 December 2020, advising her that she would have a response by 21 January 2021. The resident asked this Service to assist her with obtaining a complaint response from the landlord within the correct time.
  10. On 1 February 2021, this Service emailed the landlord to let it know that the resident had made her final stage two complaint about “the landlord’s investigation and response to her report that her neighbour is causing a nuisance or annoyance and invading her privacy by installing a ‘ring alarm’ which has a motion/speech activated camera on the shared porchway to their respective front doors. [The resident] is concerned about being monitored and recorded.”
  11. The Ombudsman further explained that the resident stated that she was concerned about the landlord’s response to her request for the removal of the camera doorbell. The landlord was advised by this Service to get in contact with the resident to resolve the issue and to get further details from her, within the timescales set out in its complaints policy or the Ombudsman’s Complaint Handling Code, whichever was the sooner.
  12. On 1 February 2021, the landlord responded to the above email communication from this Service, and it explained that the resident’s case was currently being investigated at the final stage two of the complaints procedure, and that it would conclude the investigation shortly. The landlord told us that the resident would be notified of the outcome.
  13. The landlord emailed the resident in response to her final stage two complaint on 15 February 2021. It explained that it acknowledged the resident’s complaint regarding her neighbour installing a camera doorbell, and about the resident feeling “watched” by this. The resident was advised by the landlord that it had examined the guidance by the authority that governed the use of domestic CCTV, in order to establish whether the landlord had any grounds to intervene as the resident had suggested.
  14. The landlord explained that it appreciated the resident’s above concerns, and it mentioned that it also relied on the data protection laws and guidance from the governing authority that dealt with data protection. It stated that it had limited powers to prevent the resident’s neighbour from installing the camera doorbell, or to command them to remove this.
  15. The landlord reiterated that it had contacted the resident’s neighbour to challenge them, and to ensure that they were compliant with the above guidance on data protection issued by the governing authority for this. It advised her that the neighbour appeared to have complied with this, except for the fact that they had failed to consult the resident with regard to the installation of the doorbell camera device. The resident was advised that she was free to discuss this with the neighbour, who had agreed to let the resident view the footage if she wanted to, as stated in the above guidance on CCTV devices and data protection.
  16. The landlord also explained to the resident that it was not “realistic or practical” for it to constantly monitor her neighbour’s doorbell camera, in order to confirm their assurances to it that they had complied with the above guidance on this. Although it added that the guidance was neither legislation nor a mandatory requirement for the neighbour to follow. The landlord stated that, in the absence of evidence of the resident’s neighbour being in breach of such guidance, there was no basis upon which it could justify enforcing the removal of the doorbell camera. It instead advised her to discuss this with the neighbour, or to complain to the governing authority that dealt with data protection, declining to uphold her complaint about this.
  17. The resident subsequently complained to this Service that she was dissatisfied with the outcome of her complaint to the landlord. The resident wanted the Ombudsman to investigate why it had taken so long for her to receive a stage two final complaint response. The resident also wanted the landlord to take responsibility for not responding to her in a timely manner according to its policies.
  18. The resident stated that the landlord had not been impartial when investigating the case. She cited issues to do with her privacy being invaded, and she mentioned that there was a possibility that her neighbour would be able to access the function on their doorbell camera that allowed them to listen in. The resident explained that she had evidence of how the device is not being used appropriately, and that the authority that governed data protection had confirmed that they could only contact the neighbour about using this for their sole use, which only the landlord and not the authority could enforce, and that she wanted the former to remove the device.
  19. The resident added that the landlord had not offered to monitor the situation, consider that her relationship with her neighbour had broken down completely, or taken into account that the doorbell camera was in the middle of their shared entrance, so that it was not possible to capture only the neighbour’s side of this. She also stated that it had not referred to her video recordings of the doorbell camera motioning whenever she left or returned to her property, which she had sent to it, or considered her mental state from the resulting discomfort and inability to have conversations at the entrance, which her neighbour could share with others. The resident went on to send this Service a photograph and a video of the doorbell camera that illustrated her above description of this.

Assessment and findings

Scope of investigation

  1. The resident requested that the landlord remove her neighbour’s doorbell camera as the outcome of her complaint to this Service. The Ombudsman does not have the authority over individuals’ property to order this to be removed in the way a court might, and so that outcome is not within the scope of this investigation, which is instead concerned with the appropriateness of the landlord’s handling of the resident’s reports about this.

Antisocial behaviour procedure

  1. The landlord’s antisocial behaviour procedure sets out the minimum standards underlying its commitment to responding to reports of antisocial behaviour. It states that category one (high risk cases) such as incidents of violence, threats, hate crimes and criminality, should be responded to within 24 hours. Other cases such as category two (medium risk cases) including loud noise, vandalism and fouling, and category three (low risk cases) such as neighbours’ DIY and inconsiderate or inappropriate use of vehicles, should be responded to within three and five working days, respectively.
  2. The landlord is required to “discuss with residents their expectations on how a case is to be managed and be clear from the outset of the likely outcomes that can be achieved, including timescales.”
  3. The landlord is required to provide regular progress updates, contact residents when their antisocial behaviour cases are ready to be closed, and to allow the victim or witness to assess how they feel their case has been managed.
  4. The antisocial behaviour procedure also outlines how complex cases can be managed, and the professionals that can be involved from other agencies in these by the landlord. This includes the noise and nuisance team and mediation service providers.
  5. Non legal remedies are also outlined in the procedure, and this includes requesting professional witness services used by the landlord for the resolution of antisocial behaviour. The use of professional witnessing would be used if the landlord is unable to resolve an ongoing neighbour dispute through normal resident service intervention and management, including mediation.
  6. The procedure additionally provides details of antisocial behaviour remedies, such as advice and assistance to the victim, including self-help options, and discussions with and warnings to the alleged perpetrator. This states that conflict resolution and mediation can be offered to “encourage open, honest communication and create a climate in which two or more parties can work together. Issues that can be resolved via mediation include neighbour disputes”.

Complaints policy

  1. The landlord’s complaints policy requires it to respond to stage one complaints within 15 working days, and to final stage two complaints within 25 working days. It is recommended by the policy to award compensation from the rate of £5 per week each for failures in its service standards involving delays in delivering a service and residents’ distress, as well as compensation from £50 for time and trouble incurred by residents to get a resolution to their problem.

The landlord’s handling of the resident’s reports regarding a doorbell camera

  1. Following the resident’s stage one complaint about the doorbell camera of 3 November 2020, which was installed by the neighbour with whom she shared an entrance and was a leaseholder, the landlord has shown evidence that it investigated the matter by contacting the neighbour from 9 November 2020, in order to obtain confirmation about the installation of the device. The landlord also provided the neighbour with information on that date to ensure that they complied with the use of CCTV in line with data protection law.
  2. The resident’s neighbour then told the landlord on 20 November 2020 that they were compliant with data protection laws, as the doorbell camera’s audio was turned off and the footage auto deleted, being accessed via a secure app and used solely as a doorbell to answer the door or speak to a post person. They added that this covered just their side of the shared entrance and not the resident’s side, and that they were happy for the resident to view the doorbell camera footage.
  3. The landlord therefore explained the above to the resident in its stage one and stage two final complaint responses to her of 23 November 2020 and 15 February 2021, respectively, and it stated that it would not be able to take any further action in relation to the doorbell camera being removed, as this was not within its remit. The details of the authority that dealt with data protection and use of domestic CCTV were instead provided to the resident and her neighbour by the landlord to provide awareness of, and in order to complain about, compliance issues with the authority’s guidelines.
  4. The landlord’s above actions accorded with its antisocial behaviour procedure’s above requirements for it to respond to the resident’s reports about her neighbour’s doorbell camera by doing so within the procedure’s five-working-day timescale for category three (low risk cases). It did so when it responded to her complaint about this of 3 November 2020 by contacting the neighbour four working days later on 9 November 2020, although it is of concern that it took 14 working days to reply to the resident via its stage one complaint response of 23 November 2020.
  5. The landlord’s communication with and data protection information to the resident and her neighbour were also in line with its antisocial behaviour procedure’s encouragement for it to involve other relevant agencies due to the complexity of her case. It did this by referring them both to the guidelines on data protection law from the governing authority for this and domestic CCTV use. The steps taken by the landlord additionally followed the remedies suggested by the procedure by giving advice and assistance to the resident as the victim, including self-help options, and having discussions with the neighbour as the alleged perpetrator. This approach to the matter on its part was also understandable given the likely limitation on its ability to take action towards her neighbour as a leaseholder.
  6. There was, however, no evidence provided by the landlord to show that it had complied with the other requirements in its antisocial behaviour procedure. These included discussing the resident’s expectations on how her case was to be managed, be clearing from the outset of the likely outcomes that could be achieved including timescales and providing her with regular progress updates. The landlord also did not act in accordance with the procedure when it failed to allow the resident to assess how she feel that her case has been managed when this was ready to be closed, and additional measures on how to manage the case were not explored by it.
  7. The landlord did not consider involving agencies other than the data protection authority in the resident’s case, including other teams and mediation service providers, which were suggested by its antisocial behaviour procedure. It additionally failed to explore the other non-legal remedies recommended by the procedure, such as professional witness services and mediation that are normally offered in cases where there are counter-allegations, which were also not offered to the resident.
  8. It is additionally concerning that the resident reported that the authority that governed data protection had confirmed that they could only contact her neighbour about using their doorbell camera and could not take enforcement action for this, referring her back to the landlord. It is also of concern that she explained that her relationship with the neighbour had broken down completely, illustrated that the doorbell camera was in the middle of their shared entrance so that it was not possible to capture only their side of this, and described her privacy and mental state as being affected as a result.
  9. Nevertheless, the landlord’s above failures to follow its antisocial behaviour procedure meant that the above concerns raised by the resident were not prevented or addressed by an appropriate management of her expectations, further involvement of other agencies, or exploration of other non-legal remedies on its part. It has therefore been ordered below to compensate her in recognition of its delays in delivering this service and her distress at the rate of £10 per week for the 15 weeks from 3 November 2020 to 15 February 2021, as recommended by its above complaints policy.
  10. The landlord has additionally been ordered below to try and resolve the above concerns raised by the resident. It has been ordered to do so by contacting her to explain how it proposes to address the location of her neighbour’s doorbell camera in the middle of their shared doorway, and the data protection authority’s reported inability to take enforcement action for this, in line with its antisocial behaviour procedure. The landlord has also been recommended below to review its staff’s training needs in relation to their application of the procedure, in order to seek to avoid a recurrence of its above failings in her case.

The landlord’s handling of the resident’s associated complaint

  1. The resident raised concerns about how her case was handled by the landlord through the complaints procedure. Its records showed that the landlord sent a response to the stage one complaint of 3 November 2020 within the 15-working-day time limit in the above complaints policy on 23 November 2020. However, it delayed in responding to a request of for the escalation of this to a final stage two complaint. The resident had requested for an escalation to stage two of the complaints procedure on 25 November 2020, but she only received a full final stage complaint response from it on 15 February 2021.
  2. This was beyond the complaints policy’s above 25-working-day period for the landlord to respond to final stage two complaints, being issued 30 working days later that that timescale. There were no records from the landlord indicating that there was an escalation of the complaint by it, as well as any review of this conducted by it, within the 25-working-day period in accordance with the complaints policy. The landlord, in its final stage complaint response to the resident dated 15 February 2021, mentioned an email sent to the resident about the complaint on 15 December 2020, but it did not provide a record of that email communication to this Service.
  3. The resident subsequently contacted this Service by email on 22 December 2020 to raise her concerns about the lack of a response to her final stage two complaint escalation request from the landlord. We then sent a follow-up via email to the landlord regarding the matter on 1 February 2021, and we received a response from the landlord on the same date, stating that the complaint was being dealt with under the final stage two of its complaints procedure.
  4. The fact that the resident had to contact the Ombudsman to chase the landlord before it issued its final stage two complaint response to her after a 30-working-day delay was unfair to the resident, and this would only have exacerbated her concerns about how it had handled her complaint. It has therefore been ordered below to compensate her with the £50 for the time and trouble that she incurred to get a resolution to her problem that is recommended by its complaints policy above. The landlord has also been recommended below to review its staff’s training needs in relation to their application of the policy to try and prevent its above complaints handling failures from occurring again in the future.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of the resident’s reports regarding her upstairs neighbour installing a doorbell camera at their shared entrance.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of the resident’s associated complaint.

Reasons

  1. The landlord only partially followed its antisocial behaviour procedure to ensure that the matters regarding the resident’s upstairs neighbour’s doorbell camera were fully investigated and resolved, considering that there were counter allegations that were made by the resident and the neighbour.
  2. The landlord delayed in responding to the resident’s final stage two complaint and reviewing the complaint within the time limit in the complaints policy, and it only did so after being contacted by this Service. This was unsatisfactory, as a complaints process exists to ensure that residents’ concerns are addressed within a specified timeframe.

Orders and recommendation

  1. The landlord is ordered to:
    1. Contact the resident within four weeks to apologise to her and pay her £200 total compensation in respect of any time, trouble, distress and inconvenience experienced by her, which is broken down into £50 for its delayed response to the final stage two complaint and £150 for its failure to fully investigate and resolve her reports about the doorbell camera in accordance with its antisocial behaviour procedure.
    2. Contact the resident within four weeks to explain how it proposes to address the location of her neighbour’s doorbell camera in the middle of their shared doorway, and the data protection authority’s reported inability to take enforcement action for this, in line with its antisocial behaviour procedure.
  2. It is recommended that the landlord review its staff’s training needs in relation to their application of its antisocial behaviour procedure and complaints policy to ensure that reports and complaints such as those made by the resident are dealt with in accordance with best practice. This should include the consideration of the Ombudsman’s Complaint Handling Code at https://www.housing-ombudsman.org.uk/landlords-info/complaint-handling-code/, our remedies guidance at https://www.housing-ombudsman.org.uk/about-us/corporate-information/policies/dispute-resolution/policy-on-remedies/, and the completion of our free dispute resolution training for landlords at https://www.housing-ombudsman.org.uk/landlords-info/e-learning/, if this has not been done recently.
  3. The landlord shall contact this Service within four weeks to confirm that it has complied with the above orders and whether it will follow the above recommendation.